Another New Surveillance Law (2012), by Sean Gabb

Another Surveillance Law:One More Step towards the Big Brother StateBy Sean Gabb
(Published in The Barrister, May 2012)

At the beginning of April 2012, the BBC and a couple of newspapers reported that the British Government was considering a new surveillance law. This would allow it to monitor the telephone calls, text messages, e-mails and website visits of everyone in the United Kingdom. There was a flurry of debate about civil rights and the need to protect us all against terrorists. There was a side argument between those who said the law was required by the European Union, and those who said it would be in breach of European Union law. Since then, the various debates have gone quiet. Possibly, the Ministers have decided to drop the matter. More likely, the initial leak was to soften us up for something less ambitious to be announced in the Queen’s Speech. The Ministers will say they have “listened” to our concerns – and will use the lesser measure they had in mind all the time as a precedent for moving to the full measure in later stages. This being so, whether greater or lesser, another step will have been taken to a Big Brother police state.

In common with other civil libertarians, I have been arguing for thirty years that Britain is heading towards a police state. There are two main reasons why we were, until recently, ignored. The first is the residual inability to believe that a police state could emerge here. England is the land of the common law and habeas corpus and trial by jury, of freedom of speech and religious toleration, of accountable and representative government, of privacy and individualism. We have enjoyed these things, at least in outline, since the middle ages. We taught them to the rest of the world. The doctrines known as classical liberalism are, however abstract their statement can often be, a meditation on English history. That eight hundred years of development – and perhaps longer, if we look beyond the Conquest – could be swept aside in one or two generations is hard to conceive.

The second reason is that a police state is commonly defined by its extreme manifestations. We have no obvious secret police in this country, nor any counterpart of the Soviet and national socialist concentration camps. Children are not given medals for informing on their parents, and we can make jokes about our rulers. Oh, nasty things are beginning to happen. Last year, for example, Mark Duggan was dragged by the police from a taxi in London and shot to death. In general, the police are increasingly partial to killing members of the public – sometimes at random. Or there has been the arrest and prosecution of Emma West, for being rude to the other passengers on a South London tram. But these events are still exceptional. If you want to define a police state by South American or East European practice, Britain is not a police state.

However, a police state is less about enforcement than control. Its function is to make a ruling class irresistible when robbing and oppressing, or when imposing its utopian fantasies. If people can be made to obey without being clubbed to death in a police cell, why bother with violence? There is no British Gestapo or KGB or Stasi, because our own police state rests on a foundation of changes of investigatory and criminal procedure and of omnipresent surveillance. When people know that they are being watched in all that they do, and when they know that stepping over some invisible line will put them to great inconvenience and expense, they will change their behaviour and their attitudes to authority. It is not illegal to buy most kinds of pornography. It is not illegal to buy a bottle of whisky every day, or two hundred cigarettes a week. It is not illegal to join a group that works for the mass-conversion of the white population to Islam, or to join the British National Party. But how many people will decide not to do these things if the details are being logged against their names in a central database? After all, being a known consumer of pornography may bring the police to the door when a child goes missing from down the road. Smoking and drinking may compromise the right to NHS treatment, or to adopt children, or even to continue looking after their own without supervision and preaching by the authorities. Membership of disapproved organisations may bring all manner of quiet persecutions.

When watched in this way, people will be more inclined to conform to whatever may be the current preferences of those in authority. Moreover, many will be inclined to show cheerfully willing – after all, a state able to persecute is also able to reward. Perhaps, when it has become enough of a habit, cheerful obedience will even ripen to love of the authorities. After all, resistance to oppression has always been less common than loyalty to the oppressors. When Stalin died, it was not only from prudence that millions in Russia broke down and wept in public. Possibly much of the grief when Kim Jong Il died the other month was also genuine. Show most people a stick, and beat them with it, and their response will eventually be to kiss it.

And this is what makes the logging of our electronic communications so important. It is a central component in the apparatus of surveillance and control. Of course, the Ministers and the general authorities will never admit that this is its purpose. They insist on its need so we can all be kept safe from terrorists and other criminals. They tell us that no ordinary people will be affected – that those with nothing to hide have nothing to fear. Well, this argument should by now be seen with the contempt it deserves. We all have something to hide, even if it is not presently against the law. And the argument has been used again and again. How often have we been told that a deviation from the old constitutional norms is needed in the face of some exceptional danger, and that the new powers will only be used against that danger? How often have the new powers been immediately used to spy on and control ordinary people?

Well, there was the Drug Trafficking Offences Act 1986. This made it possible for criminal proceeds to be confiscated after conviction, and by reversing the burden of proof, so that the defence had to argue that any assets in question were not the proceeds of crime. Enoch Powell denounced this in the Commons as a gross breach of our due process rights. The Ministers in the Thatcher Government replied that the evils of drug trafficking were so great, they justified a specific departure from due process that would never be allowed to form a precedent. This “specific departure” was made general in the Criminal justice Act 1988, and was eventually widened and consolidated into the Proceeds of Crime Act 2002 – a law that abolishes financial privacy for everyone but the rich, and that enables something like the American civil asset forfeiture.

Or there was the Regulation of Investigatory Powers Act 2000. This law to enable snooping, for any purpose, by any public authority, was brought in amid promises that it was needed for the fight against serious crime, and that it would never be used for normal crime investigation. The Act is mostly used by local authorities to check whether people are recycling their waste as demanded, or to check whether parents really are living in the catchment areas they put on school allocation forms.

Or there was the Extradition Act 2003. This made it possible for British citizens to be deported to face trial in the United States for actions committed in the United Kingdom that may not have been offences under British law. We were assured by the Home Secretary that this was needed for the fight against terrorism and “serious international crime.” Look at these uses of the Act:

Giles Darby, David Bermingham and Gary Mulgrew (the “NatWest Three”) extradited on charges of fraud committed in the United Kingdom

Babar Ahmad – awaiting extradition on charges of running web sites supporting the Chechen and Afghan insurgencies, without having left the United Kingdom

Ian Norris – eventually extradited on charges of price fixing that were not currently illegal in the United Kingdom

Christopher Tappin – extradited on charges of breaching American sanctions against Iran, though the alleged offence was committed in the United Kingdom, and though he was entrapped by American officials who swore that no law was being broken

Even in the case of Abu Hamza – no doubt a very wicked man – the charge was only of conspiracy. If we add to all this a discussion of how the European arrest warrants have been used in practice, we see that the Extradition Act has been less about protecting us from global terrorists and Bond villains, than about exposing British citizens and residents to arbitrary deportation to foreign countries, usually with lower standards of justice than our own, and often for acts that are not criminal offences here.

This is how every law allegedly made to protect us from terrorism and serious crime has been used in practice. This is why we should be so suspicious of the new electronic surveillance proposals.

But, even if the authorities are acting this time in good faith, the proposals ought still to be resisted. Our British police state is extraordinarily careless about the data it collects. This is always being lost or stolen. In 2007 alone, the Department of Work and Pensions lost the personal details of 45,000 claimants; a London education authority lost the personal details of 160,000 children; HM Revenue and Customs lost the personal details of 25 million families who were claiming child benefit; The Driving Standards Agency lost the personal details of three million candidate drivers. Even if it does not hand them over to despotic foreign governments, or sell them to multinational corporations, can the British State be trusted to keep our electronic communications secret? How unlikely is it that a database of our credit card purchases will not be left on a memory stick in a pole dancing club?

But let us join this theme of incompetence to the main subject of a police state. I have admitted there is much that distinguishes us from really nasty places like East Germany. But one of these points of difference is that the East German police state at least kept people from being robbed in their homes or beaten up in the street. Whatever the price in human rights, the East German police state gave people a country in which they could feel safe. Our own situation is best described as “anarcho-tyranny.” People who urinate in bus shelters, or dig up and steal copper wiring from the National Grid, or make life hell for their neighbours, or may be involved in real terrorist offences, are not prosecuted, or are defended by an army of human rights lawyers at our expense. The police state never touches them. Instead, the rest of us get our post opened by town hall snoops, who think we are trying to get our children into a better school. A man gets an ASBO for standing alone beside the Cenotaph and reciting the names of our war dead in Iraq. A student gets arrested for suggesting a police horse might be gay. Christian evangelists get arrested for quoting some of the less charitable verses from the Bible about homosexuals.

I suggest, given all the available evidence, that this county is ruled at best by some very stupid and incompetent people. At worst it is ruled by people who say they need a police state because they want to fight crime and terrorism, but in fact need fears of crime and terrorism because they want a police state. Whatever the case, they should not be given the right to gather and store details of our electronic communications.